song. shall we? >> what song? >> cumbaya. you start with the solo. >> i'm not a song bird. >> all right. that's it for "the five." thanks for watching. see you tomorrow. a bureaucrat apologizes for the obama care website, but is this just the start of the apology tour tied to the law? this is "special report." good evening. i'm bret baier. the i told you sos are coming hot and heavy from the obama care critics ripping the president over his promise. more and more people are coming to realize that definitively is not true. we have fox team coverage tonight. mike emanuel on capitol hill with bureaucrats under fire and under the bus, but we begin with

chief white house correspondent ed henry. and the avalanche of outrage over an off repeated promise. good evening, ed. >> reporter: good evening, bret. they are feeling that outrage and feeling a bit under siege after a wave of reports questioning the president's veracity. and tonight they're trying to push back. white house aides began mounting an aggressive defense of why potentially millions of people who buy their own insurance were told by president obama they could keep their plans yet suddenly cannot. >> what we're talking about here is the 5% in the country who currently purchase insurance on the individual market. and that market has been like the wild west. >> reporter: that 5% in the individual insurance market translates into up to 14 million people. and the real question now about the wild west is whether the president was fast and loose with the facts. >> if you like your private health insurance plan, you can keep your plan. period. >> reporter: the white house is

now adding all kinds of context and qualifiers saying what he meant is anyone who had insurance before health care was signed into law in march 2010 is grandfathered in, except on the third anniversary of the bill signing this march the president put out a written statement using the present tense declaring "if you like the plan you have, you can keep it." and on monday night top white house advisor valerie jarrett took to twitter to "nothing in obama care forces people out of their health plans. no change is required unless insurance companies change existing plans." liberal columnist jonathan tate responded in new york magazine that in fact the new law is the very reason insurance companies are now dropping people. wrote jar rod's claim sheer absurdity. a promise that felt like a mere oversimplification may eventually feel like one in retrospect currently feels like a lie." >> so when you say nothing in obama care caused that, that's

not true. >> again, i'm not going to challenge, you know, this in the sense that if that's the point, the fundamental point, which jonathan and others make there that the affordable care act creates a minimum standard for all insurance plans, the answer is of course it does. >> reporter: all of this is leading republicans to declare the website woes are just the tip of the iceberg. now we learn that it's only if the white house likes your insurance you can keep your insurance. >> reporter: and the white house is pressing the media to add the caveats the president left out three years ago. >> do the president's words matter when he sells to people? >> ed, again, all i ask of fox and everybody else is to provide the context. >> he did the context back then. >> there have been essentially five years to debate about this. >> reporter: and that debate continues tonight with several republicans in the house and senate now pushing legislation that would grandfather more

people in. white house officials taking a dim view of that legislation suggesting it's impractical to try to grandfather more people in at this time. >> ed henry live on north lawn. ed, thank you. president harry s. truman once said of his office, the buck stops here. apparently the obama care buck may stop considerably lower down the food chain, at least so far. chief congressional correspondent mike emanuel with what may be the first official apology. and it did not come from anyone you know. >> reporter: four weeks after the difficult rollout of the obama care website, healthcare.gov, the administrate for the centers for cms said they should have done better. >> i want to apologize to you that the website has not worked as well as it should. we know how desperately you need affordable coverage. i want to assure you that healthcare.gov can and will be fixed. and we are working around the clock to deliver the shopping experience that you deserve. >> reporter: republican lawmakers were tougher in their assessment.

>> we understand the affordable care act is the law of the land. we do. but we also understand from our constituents that there is a disaster of a rollout that's occurring, not a hiccup, but a disaster of a rollout that's occurring. >> reporter: committee chairman dave camp asked if the administration would make internal projection of enrolling 495,000 by october 31st. >> we will not have those numbers available until mid-november. >> so do you not know? do you not have any idea of how many people have enrolled? >> folks are still in the process of enrolling. in the state-based exchanges and in the federal exchange. and we will have those numbers available in november. >> reporter: new jersey democrat tempers flared after arkansas republican said the gop had offered alternatives to obama care. >> are you serious what you just said? are you really serious? after what we have gone through, after what we've gone through in the last three and a half years.

>> reporter: tomorrow health and human services secretary kathleen sebelius is expected to blame the federal contractors in her prepared remarks sebelius will say "cms has a track record of successfully overseeing the m many contractors our programs to function. unfortunately those subset of those contracts for healthcare.gov have nod. >> expecting this secretary to be able to fix what she hasn't been able to fix during the last three and a half years is unrealistic. it's throwing good money after bad. it's time for her to resign. someone else to take charge. >> reporter: house speaker john boehner says the repair will require much more than a tech surge. >> it's time to delay this. it's time to fix this before it gets any worse. >> reporter: tavenne tried to manage expectations saying initial enrollment numbers will be small. more people have received cancellation notices for current plans than have signed up.

bret. >> mike emanuel live on the hill. mike, thank you. a series of policy disasters for the administration and the subsequent explanations all point to a president who many now see as less than fully engaged. tonight, white house correspondent wendell golar goes down the list. >> reporter: from the irs's targeting of conservative groups. >> i first learned about it from the same news reports that i think most people learned about this. >> reporter: the justice department subpoenas of news organizations. >> he found out about the news reports yesterday on the road. >> reporter: to the attack on the consulate in benghazi. >> nobody understood exactly what was taking place during the course of those first few days. >> reporter: the president's most common defense seems to be i didn't know. add the fast and furious gun sting and the culpable deniability is expanded to attorney general holder. >> he's indicated he's not aware of what was happening in fast and furious. certainly i was not. >> reporter: and while he reportedly didn't know about the nsa spying on our allies until

edward snowden leaked details, his aides can't publicly confirm intelligence details but they do say it's not going on anymore. >> we do not and will not monitor the chancellor's communications. >> reporter: they also say obama's critics are making a single asujs from a number of unrelated incidents. >> the president appears to be in the dark about some pretty significant stories that are swirling around this white house. >> republican critics say a lot of things. >> reporter: actually, so do the president's friends. >> what else has the president not been told? >> well, basically all the bad stuff. >> reporter: aides say the president was caught off guard when the government shutdown froze death benefits to the families of servicemen and women. the republican national committee now calls mr. obama the bystander president. an oklahoma senator says one result of that is no one's held responsible for failures like the botched launch of the obama care website. >> what one individual was responsible for putting this

together or saying time-out, we're not ready? >> reporter: historians say sometimes presidents are kept out of the loop for their own protection. take ronald reagan and the iran contra scandal. >> there are some things they probably need deniability on, for example, the government does spy on other nations. >> reporter: at the same time hesz says chancellor merkel may be the least of mr. obama's problems. >> clearly the question of what now we call obama care, that's a loop he had better be in because that is the legacy of his whole administration. >> reporter: steven hess deciding whatnot to tell the president is a judgment call, and some details seem unimportant until they explode. >> wendell goler in the briefing room. thank you. do you think the president is out of the loop being protected by his people for plausible deniability or something else? let me know on twitter. you can follow me. up next, is nsa spying on foreign leaders just business as usual? first, here's what some of our

fox affiliates across the country are covering tonight. wfld in chicago with the first day in prison for jesse jackson jr. the former democratic congressman is serving 30 months for spending campaign money on personal items. fox 6 in birmingham, alabama, profiles a businessman who was outside the kenyan mall as it was attacked by terrorists last month. scott gilpin stayed in the country a few extra days to help victims of that attack. and this is a live look at los angeles from kttv, the big story there tonight, the city's legal action against a hot sauce plant that has area residents hot bothered the smell. that's tonight's live look outside the beltway from "special report." we'll be right back. ♪

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america's top spy was the one under scrutiny this afternoon on capitol hill. and it was over the nsa's

surveillance on foreign officials. chief intelligence correspondent kathrine reports his message was it's just business as usual. >> reporter: the nation's spy chief testified it should be no secret to the president nor his national security staff that the u.s. intelligence community is targeting foreign leaders. at one point comparing the nsa's surveillance controversy to a hollywood film. >> some of this reminds me a lot of the classic movie "casa blanca." my god, there's gambling going on here. it's the same kind of thing. >> would it be fair to say that the white house should know what those collection priorities are? >> they can and do. >> reporter: thrust into the headlines with the very public complaints of the german chancellor merkel and her counterparts in france, spain, brazil and mexico. witnesses testified the practice is not new. >> it's one of the first things i learned in intel school in 1963. >> the best way to determine a foreign leader's intentions is to somehow either get close to a

foreign leader or actually get communications of foreign leaders. would that be accurate? >> yes, it would. >> reporter: lawmakers were told european governments spy on the u.s. and hinted the same foreign intelligence agencies may be sharing data on their own citizens with the nsa. >> to be perfectly clear, this is not information that we collected on european citizens. >> reporter: on the collection of americans phone records, proposed changes would require the phone companies to hold the so-called metadata including the number and length of call, not the nsa. with investigators focused on targeted searches. the aclu is now backing bipartisan legislation from the chairman of the senate judiciary committee and republican congressman who was an architect of the patriot act. instead of allowing the courts to continue saying everything is relevant to an investigation in allowing the government to collect everything and use it later, it will say that you have to show some nexus to an actual terrorist. >> reporter: while the president has championed a weekend

terrorist threat, today the head of the nsa justified the sweeping surveillance programs by emphasizing the growing threat from global extremists citing 2,300 deaths this month alone, bret. >> kathrine, tonight news in the hunt for benghazi suspects? >> yes. we were first to report here on fox a key suspects in the attack have ties to the al qaeda senior leadership. and what we also understand through our contacts is that about half a dozen target packages were approved but have not been acted upon by this administration. and tomorrow we're expecting a news conference on capitol hill. senior republicans from the senate and the house side on the status of access to the benghazi survivors from the state department and the cia, bret. >> we'll follow that here. kathrine, thank you. >> you're welcome mplgt the syrian official who met with u.s. negotiators in switzerland over the weekend has been fired. deputy prime minister jameel discussed a possible peace conference. today he was sacked for not coordinating with the assad government and leaving the country without permission.

former editors of the now defunct british tabloid are on trial accused of snooping for snoops by eavesdropping on phone calls. senior foreign affairs correspondent david talcott has more from london. >> reporter: a jury has been chosen stemming from the alleged phone hacking and other misdeeds at a british newspaper. eight people face 15 different charges. they include rebecca brooks, former editor of the now closed news of the world as well as head of news corp.s arm. rupert murdoch remains head and the parent company of fox newschannel, also facing charges, another former editor of the paper and former media advisor to uk prime minister david cameron. all this is a sign of how far and high up this scandal has reached, specifically brooks, kolson and others are charged with intercepting or hacking into the voicemail messages of

various high profile and sensitive figures, like a missing girl later found killed. they're also charged with bribing officials and concealing evidence. those on trial have pled not guilty. the charges have led to parliamentary and other public hearings aimed at rewriting press regulations here along with multiple police investigations and payouts to those targeted and deemed effected by phone hacking. the prosecution is expected to outline its case starting tomorrow. this trial was some 100 witnesses and more than a dozen lawyers could last six months. under a lot of press scrutiny and restrictions. and there are at least two more trials with other defendants on related charges expected after that. going to be a long read. bret. >> greg palkot in london. greg, thank you. monday was quite a day for brazilian surfer carlos burle. he rode what is believed to be the biggest wave ever surfed. about 100 feet tall off the coast of portugal on the same

day burle helped rescue a fellow surfer who had fallen off her board in the pounding waves. remarkable. still ahead, so many people losing their health insurance and so little time to find something else. first, putting the pieces back together from superstorm sandy. the day we rescued riley was a truly amazing day. he was a matted mess in a small cage. so that was our first task, was getting him to wellness. without angie's list, i don't know if we could have found all the services we needed for our riley. from contractors and doctors to dog sitters and landscapers, you can find it all on angie's list. we found riley at the shelter, and found everything he needed at angie's list. join today at angieslist.com medicare open enrollment. of year again. time to compare plans and costs. you don't have to make changes. buit never hurts to see if u can find

bettoverage, save money, or both. and check out the preventive benefits you get after the health care la open enrollment ends december 7th. so now's the time. visit medicare.gov or call 1-800-medicare

it's been a full year since the devastating weather event dubbed superstorm sandy crashed into the northeast damaging and destroying not only property but lives. senior correspondent rick leventhal shows us how hard the jersey shore was hit. >> not sure if you can see the water rushing down the street, but there are white caps coming off the ocean. the dunes that were there protecting the land from the sea

have completely washed away. >> reporter: one year ago hurricane sandy roared into point pleasant beach, new jersey, smashing and swamping homes and businesses. leaving several feet of sand on ocean avenue. the white sands hotel repaired and reopened in time for summer, but many storm victims up and down the jersey shore are still struggling to recover. seaside heights is now demolishing and rebuilding part of its boardwalk for the second time. sandy leveled the fun town pier dropping the jet star roller coaster into the atlantic. it was later demolished. and piles were driven for a new $8 million boardwalk, part of which caught fire last month because of faulty wires damaged in the storm. 69 businesses that were rebuilt after sandy were destroyed. >> fortunately we're in much better shape this time. the first time around nobody had an idea what to do. that was the first experience for everybody. this is a much simpler, on a

much smaller scale. all the plans are in place. we know what to do. we know where to get the lumber. we know how to start. we know how to do this. unfortunately, we're seasoned. >> reporter: in union beach, after the storm gigi opened a bar called jacobbob's off the bay because her old restaurant was destroyed. >> jakerbob's bay is in the bay. >> reporter: her $1.2 million insurance policy offered just $9,000. and she's not sure she'll ever be able to rebuild. >> i don't know where i'm going to be next year. i would hope that we're driving pilings up the road and we're back into business and everything is good, serving nice cold drinks on the tiki bar and shrimp cocktail going out real good. i don't know. i don't know. >> reporter: tonight, union beach is holding a ceremony at the spot of her old restaurant on the bay. it's called lights of hope, a chance for the community to remember and reflect on sandy one year later. and then move on as one.

bret. >> live in union beach, rick, thank you. consumer confidence dropped sharply this month to its lowest level since april. experts blame the government shutdown. stocks were up today, the dow actually gained 111 to close at another record high. the s&p 500 added ten to also close at a new high mark. the nasdaq finished ahead 12. as if republicans don't already have enough problems with president obama, they are preparing for another fight, this one over judges. correspondent shannon breem is here with details. good evening, shannon. what court are we talking about? and what do we expect is going to get so heated? >> the problem is this is the d.c. circuit court. what's important is the key appeals court for looking at federal regulations, things like epa and irs. something that looks at administrative axz that goes around congress. so it's a real check on administrative power. this is the court that looked at the nlrb recess appointments and found them unconstitutional.

so it's very important. it's balanced right now evenly between judges who reported by republican presidents and democratic presidents, so adding even one new nominee to the president's is going to tip the balance. four of the u.s. supreme court justices served on this court. it's very important. >> democrats rightly point out there are a lot of empty seats so why shouldn't they be filled? >> there are three vacancies. the president has tapped three current lawyers, one currently a judge in a lower court. there were vacancies back when president george w. bush was fighting. court doesn't have a workload to justify filling the seats. it's what republicans are saying now and add the workload has gotten lighter in the last eight years. one of the judges currently on the bench said, if anymore judges are added now, there won't be enough work to go around. that's from one of the current folks on this court. >> and quickly there are other federal courts with vacancies. >> there are. four of the 13 federal circuits have what are called emergency judicial emergencies, basically it's looking at the case load and how many empty seats there

are. this court, the d.c. circuit, is not one of those judicial emergencies. >> okay. we'll follow it. thank you. president obama and former president clinton attended this afternoon's memorial service for former house speaker tom foley. the long-time democrat from washington state died earlier this month of complications from a stroke. foley was 84. we'll be right back.

now some fresh pickings from

the political grapevine. today marked the end of what pro-choice activists called the one in three week of action. it was a national series of events aimed at destigmatizing abortion. promotors say they want to fight back against the message that women should feel ashamed or immoral for having an abortion. one in three refers to a study that says one in three women in the u.s. will at some point have an abortion. while neither side disputes the statistics, pro-life groups look at the one in three differently. marjorie told us with this new campaign the abortion lobby tries to put forth the argument that this is somehow a morally murky issue and that abortion should be normalized in our society. this is just another example of how proabortion forces put the institute of abortion above the well-being of individual women. doctors say a number of military personnel are turning to liposuction so they can pass the

body fat test. service members say they have no other choice because the method of estimating body fat is weeding out bulkier muscular builds along with the flabby ones. a number of fitness experts and doctors agree. and they are calling for the military's fitness standards to be revamped. the office of the secretary of defense told fox news it does not recommend surgery to pass service level fitness standards. finally, a program aimed at promoting obama care to prisoners has quietly been scrapped. back in july alabama republican senator and ranking member of the budget committee, jeff sessions, challenged a no-bid contract awarded to a community advocacy organization based in chicago. sessions said millions of dollars were already awarded to the navigator's program. so a special prisoner program was unnecessary. the health and human services department canceled the contract without ever responding to session's inquiry. we told you at the top of

the program the president is coming under increasing fire as millions of americans face the prospect of losing their health insurance coverage. the very thing he promised would not happen under obama care. chief national correspondent jim angle takes a closer look at what's going wrong. >> reporter: not only were the administration's promises hollow, they may cause yet another problem with the website. as millions of people whose insurance has been canceled rush to stay covered. >> there are about 14 million people who have individual coverage. and the guess is in the insurance industry that somewhere between 7 million and 10 million are losing their coverage by the end of this year. >> i think that you can make a strong argument that that was one of the intentions of the law is to move folks from private plans onto government-backed plans. >> reporter: the administration now promises to have the struggling website running smoothly at the end of november, which could leave some 7 million people trying to sign up in the two weeks leading up to december 15th, the deadline for coverage

by january 1st. putting a sizable strain on a website that hasn't been able to handle smaller numbers, just browsing in october. >> it will be very, very challenging for them to fix these problems over the next four weeks and give folks enough time to sign up and have coverage effective on january 1st. >> reporter: a challenge that brought one lawmaker to express his skepticism in a hearing on obama care today. >> you've had nearly four years to get it ready. now you're saying in four weeks more it will be great. so what's different? why should anyone believe these claims? >> because i think we've identified two major problems. one had to do with the initial volume. >> reporter: but the volumes are likely to be far greater in the first two weeks of december as millions are forced by cancellations to seek other coverage. given previous delays, what if the federal website can't handle the sudden onslaught? one analyst says the administration could just deem any late sign-ups as having

taken effect earlier. >> the administration simply tells the insurance companies that as long as someone has enrolled in january, any time in january, they are deemed to be covered as of january 1st. >> reporter: officials recently said only three out of ten people were able to get all the way to the end of the process on the website. all those left waiting in line are starting to create a backlog in the administration's own goals for sign up. bret. >> jim, thank you. a big lie, a terrible mistake, what else? we'll talk about the obama care broken promises and what comes next with the fox all stars when we return. [ horn honks ] [ male announcer ] once in a while, everything falls into perfect harmony. [ engine revs ] and you find yourself in exactly the right place at the right time. just be sure you're in the right car when it happens. the 2014 c-class sports sedan.

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i am aware that there are issuers in states who are canceling their old plans grandfathered in and moving to new plans -- >> so what you just said about

keeping your health care plan isn't true? >> no, they could keep it. the issuers -- >> no, they can't keep it. they just got cancellations notices. you can't keep it. the president says you can't keep it. why are you saying you can? i don't understand. >> actually, any insurance that you currently have would be grandfathered in so you could keep it. and so you could decide not to get in the exchange the better plan. i could keep my acme insurance just the high deductible catastrophic plan. i would not be required to get the better one. >> the president back in february that we're learning is not true, what he said right there. before that the administrator for the centers for medicare and medicaid services for cms on capitol hill hill hot seat today. lara, national political correspondent, national public radio and syndicated columnist george will k. obviously the administration had this rollout with the website.

still dealing with those problems. but now really the details, the substance of can you keep your plan and all of these people getting notices around the country that they're getting dropped. >> and as a result the supporters of obama care are pioneering new dimensions of sofs industry. steny hoyer said the president should have caveated it. he should have put a bik asterisk over the statement saying you could keep your insurance if and only if you buy the insurance that we think you ought to have. which reveals the part of obama care that is applied bloombergism. the mayor of new york's been a very candid progressive. he says i know what you ought to eat, i know what you ought to drink and i'm going to use the police power of the city to make you do it. and obama care says exactly the same thing. you're free to choose if you choose the right thing. >> mara, i tell you, it's these

things you hear over and over again. the sound bites, you can keep your plan period, you can keeb e keep your doctor, period. not just republicans, average folks saying, wait a second, he said that. >> this was a totally unforced error to say over and over again that you can keep your plan when they knew that obama care was a disrupter. in other words, it was going to set new standards for plans. and plans had to meet them. so your plan actually isn't going to exist anymore. the reason you're getting cancellation notices is because the old plan doesn't meet the new standards. so maybe in the end you'll be happier with the new plan, maybe you'll pay less, maybe you'll pay more. we don't know. but what is not technically accurate is that you can have the exact same plan that you had because that in many cases that plan doesn't exist. >> but does this fly for this administration to dance through the tulips? >> i think it's a problem. and i think this is one of the many reasons that they wanted this rolled out after the re-election campaign, not before. because it is a disrupter. and it's going to cause a lot of changes. and some changes people aren't going to like. but to promise flatly that there

will be no changes at all for people who have insurance, just wasn't true. and it got them into the mess he's in today. >> tucker. >> well, the context matters. i agree with mark completely, it was an unforced error. but it was also a necessary piece of rhetoric. this was in the runup to one of the hardest fought legislative battles of my lifetime. they went through on a party line vote, it squeaked through. they had to say this. they didn't just say it, they said it again and again and again. spokeswoman linda douglas did a video on this, aarp came out and backed them up. it wasn't something he said paraphernal parenthetically in a speech. now, today, jay carney, this is the most telling thing i've seen all year he said of the people losing their health insurance. the 5% currently purchased insurance on an individual market and that market has been like the wild west. it has been underregulated. in other words you're an outlaw if you're in that market. it's your fault you're losing your insurance. >> well, he's not saying it's your fault. he's saying we've now regulated

the market. those people had no other choice but to go. they didn't get it from their employer. >> how does he know that? these are people freely bought insurance and he's saying you bought the wrong kind of insurance. maybe they like their insurance. >> i think what tucker has just established that it wasn't an unforced error but it was absolutely forced because they couldn't have got the 60 votes if they'd turned to the country and said by the way you cannot have what you have now because all the polls show, again, most americans had insurance and most were happy with it. >> the white house -- you referenced this, linda douglas, she was the communications director for the health care roll outback in 2009, 2010. and they had this cite on the white house blog that essentially said we're going to truth search all these stories about obama care. as tucker mentioned, here's one of them. >> the truth is that the president has been talking to the american people a lot about health insurance reform and what is at stake for them. so what happens is that because he's talking to the american

people so much, there are people out there with a computer and a lot of free time. and they take a phrase here and there, they simply cherry pick and put it together. and make it sound like he's saying something that he didn't really say. now, for example, here's a clip that they probably won't show you. >> here's the guarantee that i've made. if you have insurance that you like, then you will be able to keep that insurance. if you've got a doctor that you like, you will be able to keep your doctor. nobody is trying to change what works. >> we have shown that clip. and now critics are showing those clips again and again and again, mara. >> yeah. they're going to keep on showing them. i mean, the big question at the end of the road is whether people are happier with the new plan that they're now going to have to buy, or did they like the old one? it's absolutely untrue what he said that you can keep the exact same plan that you have. a lot of those plans are no longer operative.

but in the end if people like the new plans they buy on the individual market and the exchanges, then i think he comes out okay. they're playing for time here. >> george, tee up if you would secretary sebelius on capitol hill tomorrow. today, as we said, the administrator for cms was up there, q and a about the number of people enrolled always came back with those numbers will be available in mid-november. no real answer. >> if the numbers were good, we'd have them now. i think that's a safe assumption. unless they really can't get the numbers in which case that just doubles down on the indictment. they ought to surely have a rolling estimate. jeff bezos can tell you how many flat screen televisions amazon sold today. >> they have a rolling estimate, but it's very low. the argument they make is that it's going to be low because in massachusetts only a couple hundred people signed up in the first month and the big crush came right before the deadline. that's when you get. and it's going to be embarrassing if they say only 25 people or however many it is. they want to wait until they

have good numbers, but they have said that they're going to put out numbers mid-november. they've made a lot of specific prom promises. the website is going to be fixed by the end of november. those are hard and fast deadlines. >> we're talking tonight about hard and fast promises made that turned out to be bogus. >> i can pull up on my iphone right now and say how many people on the daily call and where they're coming from. this is a government reading all our e-mails which is pretty good at data when it wants to be. and the idea they have no idea is a flat out lie. by the way, their explanation that, well, the system crashed because too many people are on it. is that number going to go up or down as the deadline approaches? >> this is what lamar alexander said today. he said wikileaks is pouring out data all over the country. the only secret kept in washington anymore is the number of people enrolled. >> that's it for this panel. we'll have full coverage of the sebelius testimony tomorrow. next up, is president obama out of the loop? and if so, how far? both maxwell and ted

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>> i first learned about it from the same news reports that i think most people learned about this. i think it was on friday. >> we don't have any independent knowledge of that. he found out about the news reports yesterday on the road. >> i can assure you that i certainly did not know anything about the ig report before the ig report had been leaked through press -- through the press. >> do you know when he first knew that there was a problem? >> well, i think it became clear fairly early on. the first couple of days. >> but not before that though? not before october 1st? >> why wasn't the president told though? its his signature

achievement. was he being insulated. >> we did not expect or anticipate the scale of the problems that that has occurred. >> there is no follow-up to my knowledge with the president, but his staff was engaged with the national military command center and pretty constantly through the period. >> but no direct communication from him? >> not on my part, no. >> why won't you tell us what date you learned? was it yesterday or the day before? >> ed, what i can tell you is when the president -- right, and when the president found out, he was -- everyone knows the president did not know about this tactic until he heard about it on -- through the media. >> that was a string of recent defense of the president and it's common now to hear that he didn't know. we're back with the panel. tucker, is he out of the loop? >> well, i think a lot of people look at this and assume that the white house is sticking to its central goal, which is protecting the principle. the president had no idea. i think this is part of a pattern that reveals a president who is distant,

who is not involved in the details. who is not a detail guy. remember, his first interaction with congress the very beginning of his first term the stimulus he stood back and let the congress write the legislation without getting involved. there was an amazing "new york times" piece just several months ago where one of his aides described his demeanor in meetings about syria, questions about to arm the syrian rebels the president sitting back in his chair chewing gum looking bored and desengaged. this is a piece of a long standing, i would say, trend. >> marah? >> i actually disagree a little bit on. this first of all, if you want to string these quotes together. you get one damning indictment that looks like the president is completely out of it on the other hand there is a real impetus in the white house to protected the principle. i think that's part of this. on some of this it's really damning he didn't know like the healthcare web site. that's his signature achievement. on the irs, ig report he shouldn't have known about that in other words, there has to be some kind of

independent investigations. >> sure, when stuff is hitting the fan, at that point, he should know before he reads it in the paper. >> yes. there is no doubt about that and especially on the heferlt care web site. this is his signature achievement. we don't want him to be like jimmy carter doing the schedule for the white house tennis court. he doesn't have to be a micromanager. i think it's important that he is on top of the problem. >> a week ago yesterday in the rose garden the president said nobody is madder than me. so mad was he his grammar failed him. he had said quite the same thing about the irs scandal. and he seems to think that his job as chief executive is not to be executive but to be angry at his own administration when it doesn't perform well. fast and furious, the irs, benghazi, nsa, investigation of our mr. rosen. there is just a list of things that surprise him. >> it's not surprise though because he is not a policy guy there is a very revealing moment in the press recently one of his

aides was asked what does the president read? and the aide who was defending the president revealed a list of progressive newspaper columnists, opinion columnists. that's what he reads? not a policy guy. i think the president is what he seems. a guy who is happiest when he is giving soaring speeches. >> marah, you are there every day. does it get to a point where it's over the top on no, he didn't know this? >> i think these things can have a cumulative effect, especially when a couple big ones come along that really really matter. healthcare really, really matters. this is about implementation. this is a big complex project. the most -- the basic premise of the obama presidency is that the government can do good things for people, can make middle class people's lives better. okay? well, he has to prove that he says i don't want bigger government, smaller government, i want smaller government. that's what this is about. he has to be on this to the point that it works. that's where it can really undermine him. >> if he didn't know there were problems with that web site or his white house

chief of staff didn't tell him that's a problem. >> that's a problem. >> 100 years ago this year we went to 435 members of congress. since then, the government has doubled, doubled again, begin it quintupled. if the president would get be a solution. the government is so big that no one can manage it anymore. let alone have oversight of it. if he he said that his entire project is called into question. >> the nsa, somebody said that officials at the nsa don't even understand their own programs well enough to explain them to the fisa court. if things are too complex that the people operating them don't understand them, it's time to do something about them. >> and if he didn't know that the phones were being tapped of angela merkel is that conceivable if he is getting the information from those phone taps. >> as a general matter he must have known that foreign governments were under

surveillance by our government. if he didn't know that that would be, i guess, negligence. but i agree -- this was the guy who was supposed to be on top of it. he with a as reaction to bush who was so dumb. this guy is a genius. is he a policy guy. he is not a policy guy. he is a talker. >> that is it for the panel. stay tuned to see how the president played the odds in foreign policy.

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finally tonight, president obama is under fire from world leaders for tapping their cell phones and listening in. one show points out he is really just staying true to his own word. >> true partnership and true progress require constant work and sustained sacrifice. they require allies who will listen to each other, learn from each other, and most of all trust each other. [cheers and applause] >> listen, learn, trust, you know, two out of three ain't bad. >> thanks for inviting us

into your home tonight. that is it for this "special report," fair, balanced and unafraid. don't forget tomorrow is a big day on capitol hill. secretary sebelius testifies. we'll have it for you. greta goes "on the record" right now. this is a fox news alert. h.h.s. secretary kathleen sebelius has just announced a new date. she has now agreed to also testify before the u.s. senate on november 6th she will be there. that's the date she will appear before the senate finance committee. and tomorrow, of course, she testifies at a house energy and commerce committee hearing. and right now how is it that president obama seems to be the last to know? isn't he president? isn't obama care his program. first it was the rollout flop and now -- >> according to news reports, the obama administration knew for at least three years that millions, millions of americans would not be able to keep their health covera